(Morgan Smith/Texas Tribune)
Two students who were denied admission to UT in 2008 hope to overturn a landmark 2003 U.S. Supreme Court opinion allowing the use of race in the admissions process at the Michigan Law School. Their defense is funded by the D.C.-based Project for Fair Representation, founded by former Houstonian and anti-affirmative-action crusader Edward Blum in 2005 to challenge what he regards as the unconstitutional use of race in public policy.

After an applicant to the University of Texas law school successfully sued the state in the late ’90s for its race-based admissions policy, the Legislature passed the top 10 percent rule, which became a racially neutral way to promote diversity. The university also used socioeconomic-based affirmative action. But after the 2003 decision came down, it reworked the policy to consider race as a factor in admitting students outside the top 10 percent.

Texas’ 5th Circuit sided with the university in January of last year. The U.S. Supreme Court has proven narrowly divided over affirmative action cases in the past. It has two new justices — Sonia Sotomayor and Elena Kagan — since it last took up the issue of affirmative action in education, but Sandra Day O’Connor, who was the swing vote in the 5-4 Michigan case, has been replaced by the more conservative Samuel Alito. That means the the swing vote will likely go to Anthony Kennedy, who joined the dissent in the 2003 Michigan case, against race-based admissions. There’s another twist: Kagan will recuse herself because she was U.S. solicitor general in 2010 when the federal government filed a brief with the 5th circuit in support of UT. (Read more at the Texas Tribune)